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Artists Sue Sirius Over Pre-1972 Songs

In 2013, Flo & Eddie of the rock band "The Turtles" filed three suits in California, Florida, and New York, arguing that Sirius misappropriated their music and owes royalty payments. The plaintiffs seek more than $100 million in damages. Amendments to copyright law protect sound recordings authored after 1972, but older hits were left out. This means the artists do not have an exclusive right of public performance and therefore are not entitled to royalty payments. Now, many artists are fighting back.

The band's lawsuit against SiriusXM radio over sound recordings dating prior to 1972 is heating up in court. The suit focuses on whether artists who made songs before 1972 are entitled to royalty payments when satellite radio plays their songs. In the latest ruling by a New York judge, the band that brought the suit was found to own the copyrights and the right to public performance. However, the judge has limited the damages the band can collect to the three years before the band sued.

The Turtles lawsuit, by all accounts, will have far-reaching effects and may very well change radio stations such as Sirius and Pandora. In the New York case, the federal judge rejected Sirius' argument that The Turtles did not own copyrights in their recordings, such as "Happy Together." The judge also rejected Sirius' argument that The Turtles gave the radio station an "implied" license to play Turtles songs. She found that Sirius reproduced Turtles songs in many ways, but at least some copies would be infringing reproductions.

A month prior to the November ruling, two California judges reached similar conclusions, providing good news for older artists. In one case, a federal judge found that Sirius violated public performance rights by failing to pay royalties. The court had to examine state and federal laws to determine whether "exclusive ownership" of pre-1972 sound recordings includes the exclusive right to publicly perform the recording. In the other case, a trial court judge in Los Angeles reached the same conclusion, rejecting Sirius' argument that decades of use by music users such as bars, restaurants, and "terrestrial radio" assumed a right to public performance of music made before 1972. The judge also found that allowing record companies to profit from the performance of sound recordings when they did not expect these payments or seek the rights to the records violates public policy. Quite simply, it would be unfair to not allow the artists to collect royalty payments.

The next step in the New York case is oral argument before the appellate court, one step below the United States Supreme Court. Lawyers and industry insiders are watching this case because it could have expansive implications.

If you are an artist, musician, author, contact the experienced copyright lawyers at MYERS BERSTEIN LLP today to discuss protecting your legal and financial rights.

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